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The Aspen Daily News published a Jan. 20 article titled “Mayor’s housing purchase not unique,” which compared two 2022 sales of Hunter Creek condominium units to Mayor Torre’s August 2023 purchase of his downtown apartment for $106,000.
The article included two inaccuracies regarding the deed restrictions on the Hunter Creek units and the deed restriction governing Torre’s unit on East Hyman Avenue. Upon discovering the inaccuracies, the newspaper removed the article from its website with plans to look further into the mayor’s purchase and to correct the mistakes.
The Jan. 20 article inaccurately reported that the 1982 deed restrictions encumbering the two Hunter Creek condominium units before the sales were silent on whether the units needed to be sold by lottery. The deed restrictions on both units do call for sales by lottery.
According to comments from the Aspen-Pitkin County Housing Authority received after the publication of the Jan. 20 article, the units sold without a lottery because they each only received one bidder, not because of an absence of lottery requirements in the deed restrictions.
The units cited in APCHA’s example are at 513 and 615 Vine St., both sold by Colorado Mountain News Media — which formerly operated The Aspen Times under Swift Communications Inc. — to Andrew and Giovannina Turchin on April 29, 2022. Swift was sold to Ogden Newspapers around late 2021/early 2022, but CMNM’s local real estate holdings were not included in the sale.
The Jan. 20 article also inaccurately reported that the 1982 deed restriction governing Torre’s unit required it to be sold to an “employee.” The deed restriction requires that the unit be used as “employee housing.”
The Aspen Daily News first reported on Torre’s sale after The Aspen Times published a column by local writer Elizabeth Millias on Dec. 30 suggesting that APCHA skirted its own rules to secure the unit for Torre that otherwise could have been sold for a higher price to another buyer. In particular, Milias pointed to the fact that Torre purchased his unit without having to pass through the standard lottery process that applies to the vast majority of APCHA units.
Milias also pointed out that the unit did not pass directly between the seller and Torre but rather from the seller to A
PCHA and then from APCHA to Torre on the same day. Milias said APCHA’s momentary ownership indicated an effort to exempt the mayor from paying the city of Aspen’s real estate transfer tax.Milias has told the newspaper she does not believe APCHA engaged in any illegal behavior but acted in “bad form.” In her Dec. 30 column, she suggested that the sale was indicative of a “corrupt” system.
After Milias published her column, reporters at the Aspen Daily News and the Aspen Times both wrote stories in which APCHA claimed that Torre’s sale was “normal” and that the housing authority had brokered 18 similar sales in the same year. APCHA Executive Director Matthew Gillen said that APCHA forwent a lottery on Torre’s unit because the antiquated deed restriction governing the unit did not call for one. Gillen said APCHA updated the deed restriction and the unit will be sold by lottery in the future.
Gillen also stated that APCHA’s momentary possession of the unit was standard practice. A brief review of APCHA ownership unit sales in recent years through Pitkin County public records indicates that this practice is common and not limited to Torre’s purchase. Doing so is necessary for APCHA to update the units’ deed restrictions. Gillen pointed out that the unit would not have been subject to a RETT in any case because deed-restricted housing units are exempt from the tax.
Torre told the Aspen Daily News in an interview that the previous property owner, Kathleen Denson, approached him and offered the property to him. Torre had rented the unit from Denson for 19 years before purchasing it.
The Times has since redacted the online version of Milias’s column, and Milias severed her four-year relationship with that paper in mid-January because of what she described as “censorship.” Milias continues to write her own “Red Ant” political newsletter, which she reported to have over 3,000 subscribers by Jan. 20. Aspen Times editor Ray A. Erku did not respond to a request for comment.
The Aspen Daily News asked APCHA to provide a list of all 18 sales conducted in 2023 that Gillen said were similar to Torre’s. The sales provided, however, all involved “resident-occupied” units, a class of deed-restricted housing that isn’t sold by lottery. Torre’s unit is not an RO unit.
The ADN returned to APCHA with the following question: “All the other non-lottery sales this year were RO units. Torre's unit is the only non-RO unit sold this year without a lottery. Does APCHA have an example of another non-RO unit sold without a lottery in recent years?”
In response, APCHA provided information on the Hunter Creek sales. Like Torre’s unit, both units were sold without lotteries. The deed restrictions on both units dated from the same year as the restriction on Torre’s unit, and APCHA brokered both sales, taking momentary possession of the units as they had in Torre’s case. But unlike the deed restriction on Torre’s unit, the deed restrictions on those units called for lotteries.
After discovering that the Hunter Creek deed restrictions called for lotteries, the Daily News asked APCHA officials if they believed the sales were comparable to Torre’s purchase.
“Torre’s deed restriction was very old and unique to the Tom Thumb Building so it’s impossible to find an exact comparable situation. … As has been said before by APCHA officials, no antiquated deed restriction is the same, particularly those that were crafted in the 1980s,” Gillen said in reply.
In an advertisement purchased that appeared in the ADN on Jan. 26, local affordable housing developer Peter Fornell argued that APCHA was operating as the property owner’s “agent” when brokering the sale (APCHA has denied entering a listing agreement with the seller). In that capacity, Fornell says APCHA led the seller to deed her property to Torre without informing her that she could have sold the unit to another buyer and/or for a much greater price than she received. If she was aware of this possibility, he argued, then the sale seemed to him like a “favor.”
“I wasn’t aware that politicians were allowed to accept ‘favors,’” Fornell wrote.
Milias further argued in a Jan. 14 newsletter that APCHA should have been required to sell the unit by lottery because, in the brief moment when APCHA owned the unit, it applied a new deed restriction requiring the unit’s sale by lottery. At that time, Milias argued, the old deed restriction (silent on a lottery) and the new one (requiring a lottery) cannot have been active at the same time, and therefore APCHA should have abided by the terms of the new deed restriction (APCHA holds that the new deed restriction only went into effect once Torre purchased the unit).
“If APCHA purchases a unit and can legally update its deed restriction, it can also conduct a proper, fair, honest and transparent lottery. Someone at APCHA apparently chose not to. If this has occurred before, it’s highly unusual and not adherent to policy,” Milias wrote.
Milias said she had consulted a local attorney when writing the newsletter.
The Aspen Daily News returned to APCHA with the following questions regarding the sale and received the responses included below:
ADN: When APCHA brokers a sale of a unit encumbered by an old deed restriction and then applies a new updated deed restriction, when exactly does the new deed restriction go into effect? Is it before or after the purchaser has taken ownership of the unit?
APCHA: It depends. Only the owner can place a new deed restriction on the property. The new deed restriction goes into effect upon the adoption of the new deed restriction by the owner of the property. Often, APCHA buys the property and adopts the new deed restriction prior to its sale to a qualified buyer. That is not a requirement. In this case, the new deed restriction was not in effect when APCHA bought the property. It was adopted by Torre simultaneously with his purchase.
ADN: I have heard arguments that during Torre’s Aug. 17, 2023, purchase of unit A301 in the Tom Thumb Building, APCHA briefly owned said unit, during which time it placed a new deed restriction on it. After placing the new deed restriction on the unit, APCHA deeded the unit to Torre. Since the new deed restriction (which was supposedly in effect at the time APCHA deeded the unit to Torre) explicitly calls for the unit to be listed for competitive bid (and sold by lottery if more than one bid is received), the property should not have been sold directly to Torre. Is this true? If not, why?
APCHA: This is not correct. APCHA did not place the new deed restriction on the property and it was not in place prior to Torre’s purchase of the property. A301 was sold to APCHA and then to Torre under the old deed restriction which did not necessitate a lottery sale. There was nothing to prevent a sale of the property directly from the previous owner to Torre under the old deed restriction, and APCHA had no option to purchase under the old deed restriction. Therefore, there was no circumvention of the sale by lottery requirement in this case.
On Torre’s purchase of the unit, a new deed restriction was put into place which now exists in perpetuity and ensures that future sales will be conducted via lottery. This a benefit to APCHA that it could not impose unilaterally in the circumstances of the old deed restriction and this transaction.
ADN: Where in the 1982 deed restriction for unit A301 before Torre’s purchase does APCHA gain jurisdiction over sales of the unit? What gave APCHA the authority to momentarily purchase the unit?
APCHA: It is unclear what you mean by “jurisdiction.” Unlike new deed restrictions, the old deed restriction did not give APCHA a purchase option. Therefore, this could only occur as a result of a voluntary agreement between seller and buyer. Exhibit A of the old deed restriction subjects the property to limited use and occupancy to qualified buyers and tied sales price to the city’s rules. There are no other requirements.
ADN: How was the sale price for this unit reached?
APCHA: The price was established by the deed restriction that was on the property. The deed restriction stated that the property would appreciate at 6%. The price that it started with was already in APCHA’s system from a long time ago and appreciation from the 1980s at 6% per year. It appreciated to the time that we went under contract to what Torre bought it for: $106,363.
ADN: Some members of the community have argued that under the conditions of the 1982 deed restriction, Torre’s unit could have been sold to any buyer at any price. APCHA’s only authority in managing the unit was in approving future occupants. Is this true in APCHA’s estimation?
APCHA: No. APCHA has responsibility to apply the conditions set forth in the deed restriction. It could not be sold at any price. The sale was subject to a maximum sales price. Absent a lottery requirement, the seller could sell to any qualified buyer they wished. The old deed restriction limited use and occupancy to qualified buyers and tied sales price to the city’s rules. The owner could sell to any qualified buyer of its choosing without a lottery.
ADN: Can you please provide any communications within APCHA in which it was decided that APCHA did have jurisdiction over this sale and was entitled to momentarily purchase it?
APCHA: APCHA was approached by a buyer and seller to facilitate the sale of a property in the APCHA inventory. The possibility of a sale not facilitated by APCHA was not explored. The initial outreach was from the previous owner of the unit to APCHA.
ADN: Did APCHA have the seller of unit A301 sign a listing agreement entitling APCHA to broker the sale for them?
APCHA: APCHA worked closely with the owner’s family on the sale but did not have a Listing Contract with them. APCHA did do the Sales Contract and worked with the title company, the buyer and seller on the closing. The owner and owner’s family thought it was the easiest way to complete the transaction to the person that they wanted to buy the unit. APCHA’s purpose was to be sure that an updated deed restriction was recorded with the new owner and that was done.
ADN: When brokering a sale of a unit like A301, does APCHA have the responsibility to advise the seller on how to receive the maximum possible price for their unit? Does APCHA ever provide advice like this?
APCHA: The maximum sales price for each unit, based on time and price of purchase and applicable appreciation is determined by APCHA and provided to each seller and is also available to owners upon request. APCHA does not give legal or financial advice.
The Aspen Daily News also asked APCHA to provide the communication in which the property owner requested that APCHA facilitate the unit’s sale and update its deed restriction. APCHA said the interaction occurred over a phone call.
The newspaper then contacted the property owner’s daughter, Jessica Jacobson, who represented her mother in the transaction. When asked whether she comfortably requested that APCHA broker the sale, Jacobson said, “Yes, 100%.”
“We had the choice to sell it to whomever we wanted to sell it to,” Jacobson said. “It didn't have to be a lottery … So we went to him because he was such a wonderful tenant and took really good care of the property. And he's the mayor. He deserves to be able to afford a place to live in the town.”
“I actually would have preferred to buy it. But it was (my mom’s) choice. And she was really clear that she wanted to offer it to (Torre) before we did anything else,” Jacobson later said.
While she said it would not have likely changed her mother’s decision around selling the unit, Jacobson said she was not aware that she could have waited for the deed restriction to expire and then sell the unit for a higher price (the deed restriction was set to expire in 2032).
“No, we didn't know that. But that's not really what it's about. Like, Aspen can't be Aspen without people who live and work there who are regular,” Jacobson said. “They did not bend the rules. This was our choice.”